For those who have obtained settlement (indefinite leave to remain) in the UK, the next stage is often to naturalise as a British citizen. Many of those who seek to naturalise are nationals of EU countries, or their family members, who began their residence in the UK prior to Brexit and obtained residence rights on that basis. Issues and uncertainties can arise during a naturalisation application which are specific to EU and EEA citizens, and below we take a look at the most common of these.
Applications to naturalise as British are made under the British Nationality Act (BNA) 1981, with reference to either Section 6(1) or 6(2) of that Act. Those who have obtained settlement after a qualifying period of residence, and are applying on that basis, apply under S6(1), whilst S6(2) applies only where the applicant is married to a British citizen.
To successfully naturalise as British, an applicant’s residence in the UK must have been lawful for a relevant period prior to applying. This relevant period is usually the 5 years prior to application, unless they apply under section 6(2); in that case, the period is 3 years.
In practice, lawful residence can be demonstrated by evidence of holding valid leave to remain for the required period. For applicants whose residence rights derived from their own, or a family member’s, EU citizenship, meeting the residence requirements prior to 31 June 2021 can usually be shown by evidence of exercising EU treaty rights during their residence (so through working, studying, or self-sufficiency). Residence from 1 July 2021, however, can be a little more complicated.
EU citizens and their family members were, for the most part, expected to apply to the EU Settlement Scheme by 30 June 2021 to secure their UK immigration status – applications submitted after that date were considered late. As the protection of EU citizens’ rights and status in the UK ended on 1 July 2021, this technically means that late applicants to the EUSS would not have held valid status between 1 July 2021 and the date they applied to the EU Settlement Scheme.
Whilst this may seem concerning for anyone who did apply late to EUSS and is now hoping to naturalise, changes recently introduced under the Nationality and Borders Act 2022 are of assistance. Anyone who holds settlement or indefinite leave to remain, which includes Settled Status, will now be assumed to have held valid leave for the 5 or 3 years prior to applying. This means that, even where an EUSS application was submitted late, if the applicant has subsequently been granted Settled Status the delay won’t be counted as a break in their lawful residence.
To naturalise as British, an applicant must be “free from immigration time restrictions”, i.e. be free from any limit on the time that can be spent in the UK. In practice, this usually means being a settled person, including holding Settled Status under EUSS.
Under S6(1), this immigration status must have been held for at least 12 months prior to applying; note this additional requirement does not apply to applicants applying under S6(2).
For applicants who acquire Settled Status through EUSS, either after first holding Pre-Settled Status, or after completing a qualifying 5-year period in the UK, the requirement is relatively straightforward. After acquiring Settled Status, unless the partner of a British citizen, applicants will need to wait at least 12 months since that status was granted before an application to naturalise can be made.
But what of people who acquired Permanent Residence under the previous EEA Regulations? Until 31 December 2020, Permanent Residence granted under the Regulations also meant the holder was free from restrictions on time spent in the UK. Once the Regulations were repealed, however, this status ceased to be valid, and holders were expected to apply to the EU Settlement Scheme by the deadline of 30 June 2021. Anyone holding Permanent Residence under the Regulations who has not yet applied to the EUSS should consequently do so without delay, even if they have no intention of applying to naturalise.
In terms of naturalising, as Permanent Residence status is no longer valid, holders will not be free from immigration time restrictions at the date of application. An application to the EUSS will be required, which should result in a grant of Settled Status to previous holders of Permanent Residence, provided the applicant meets the other requirements and has not lost their entitlement, for example through prolonged absence from the UK.
As mentioned above, applicants under S6(1) must have been settled for at least 12 months prior to applying; does this mean that when Permanent Residence is converted into Settled Status, an applicant will have to wait another 12 months before applying? The answer is no – applicants may use a combination of Permanent Residence and Settled Status to show that they have been free from immigration time restrictions for at least 12 months. If Permanent Residence was held for at least 12 months before Settled Status was obtained, no further wait will be needed.
To successfully naturalise as British, whether applying under S6(1) or S6(2), applicants must show they are of good character. This covers issues such as criminal convictions and cautions, undischarged bankruptcies, and compliance with UK immigration law over the 10 years prior to applying, which includes overstaying.
We have already seen above that the deadline for applying to EUSS was 30 June 2021, so applications after this date were technically late. If the applicant has been granted Settled Status, however, any overstaying before then will no longer affect the good character assessment.
Other non-compliance with immigration law during the 10-year period will still be relevant however, so late EUSS applications could still affect the good character assessment in other ways. Illegal working, for example, would normally leave to a refusal on good character grounds. Until 30 June 2021, the rights of EU citizens and their family members were protected, including the right to work, but that protection ceased on 1 July 2021 for those who hadn’t yet applied to EUSS.
This technically means that those who were required to apply to EUSS but failed to do so in time had no right to work between 1 July 2021 and the date they applied to EUSS. Whilst this may seem concerning, it is unlikely employment during such a period will actually be viewed as illegal working by the Home Office, or be a cause for refusal on the grounds of good character – we expect that a more lenient view will be taken.
Another issue specific to EU nationals and their family members is that any residence prior to 31 December 2020 must have been in accordance with former EEA Regulations. As the UK required these groups to hold comprehensive sickness insurance if they had been studying or self-sufficient, the Home Office has always maintained the right to refuse naturalisation to those who did not hold the required cover, or who struggled to evidence provide evidence of it. Fortunately, refusals on this basis do not seem to take place in practice. As the UK’s insistence that CSI be required has since been held unlawful by the Court of Justice, this issue should not arise in the future.
As we have seen above, applications to naturalise as a British citizen can present complications for EU nationals and their family members; whilst we have discussed the most common ones above, other complex issues can also arise. If you are applying for naturalisation, the team at Latitude Law have extensive experience of advising on, and preparing, citizenship applications; speak with one of our expert lawyers today on 0161 234 6800 or complete our online enquiry form.